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Sunday, August 16, 2015

A Moron In A Hurry




Because the judicial system is not nearly complicated enough, there is a concept called “legal fiction”. In order to apply some laws, a fictitious assumption is made. For example, corporations are NOT really people because – well if you don’t know why, I don’t think I’m going to be successful in explaining, but the concept is something only our court system would come up with.


However, British courts trounce American courts in complexity and obsolete ritual.  


During one of my less productive ideas, I thought I would look at the historical construction of the court system and highlight why some aspects of the system that are not functional (and by some I mean lots and by not functional I mean the mouth open, slow head shake in astonishment at the lack of functionality).


The short answer is I mostly gave up (with my mouth open and a slow head shake).


The long-ish answer is typified by the difference in court dress.


The US Supreme Court dress was briefly fancified but since then, for the most part, justices can choose courtroom attire, sticking to traditional black. Bar members are asked to wear “professional business attire” and participants are warned that “inappropriate clothing may not be worn.” 


That gives some interpretationally challenged individuals a bit of leeway and some intentionally provocative individuals enough structure to rebel against.


The British court dress is a little different.


All male advocates (whether barrister or solicitor) wear a white stiff wing collar with bands (two strips of linen about 5"/13 cm by 1"/25 mm hanging down the front of the neck) . . . and that is just the regulations for the collar.


"At present High Court judges have no less than five different sets of working dress, depending on the jurisdiction in which they are sitting and the season of the year." 

The Lord Chief Justice, when robed, dresses like a High Court Judge with the distinction of a train to his scarlet robe. On ceremonial occasions he wears the scarlet and fur hood and mantle, and in addition a gold chain of office in the form of a collar of esses.


A shoulder-length ceremonial wig will set the owner back £1,500 or $2,300.


Because the British system has been around for awhile, they do have some interesting legal fiction (and interesting events like The Worcester Rotary club annual pancake race.) 


The Man on the Clapham Omnibus, is similar to the US Man on the Street, a reasonably educated and intelligent but nondescript person, against whom the defendant's conduct can be measured.


There are a few convoluted concepts dealing with the transfer of property including The Fertile Octogenarian, The Unborn Widow and The Precocious Toddler.


The best legal fiction, is A Moron In A Hurry. A trademark infringement can be disputed if two similar products with similar packaging could only be confused by a moron in a hurry.


That is a GREAT litmus test!

Can the instructions for medication management be followed by a moron in a hurry?

Can a moron in a hurry successfully get from the airline gate to baggage claim?

Can the EZ IRS form be completed correctly by a moron in a hurry? By a moron with an extensive amount of leisurely time? By anyone? Under any circumstance? 


No? Well then you best be re-thinking those parameters ‘cause honey that is gonna’ cause everyone some unnecessary grief.


One finally bit of British justice?


William Jennens “The Miser of Acton” died in 1798, unmarried and with a fortune of £2 million (worth £200 million today).  His family kept the case in court for one hundred and seventeen years, until 1915, when all the funds had been consumed by legal representation.



Pretty impressive when considering that the American equivalent, the Anna Nichole Smith case, despite being heard twice at the US Supreme Court, has only been around for twenty years. 


You have to admire the beauty of a self perpetuating system and unless the American can-do spirit keeps the case open until 2112, we will have to conceded British superiority.

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